243 F.3d 145 (3rd Cir.

2001)

MICHAEL KIRSCHBAUM; HELEN KIRSCHBAUM,

v.
WRGSB ASSOCIATES D/B/A GSB BUILDING; THE
BALCOR COMPANY
v.
INSIGNIA COMMERCIAL GROUP WRGSB ASSOCIATES;
THE BALCOR COMPANY, APPELLANTS IN 00-1017
INSIGNIA COMMERCIAL GROUP, APPELLANT IN 001023
Nos. 00-1017, 00-1023

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued: December 4, 2000
Flied March 9, 2001

Appeal from the United States District Court for the Eastern District of
Pennsylvania Magistrate Judge: Thomas J. Rueter, (Civil No. 97-cv05532)[Copyrighted Material Omitted]
Counsel for Appellants/Cross-Appellees: Thomas P. Bracaglia, Esq.
(Argued) Frank S. Nofer, Esq. Kelly, McLaughlin & Foster 1617 John F.
Kennedy Boulevard Suite 1690 Philadelphia, PA 19103
Counsel for Appellee/Cross-Appellant: Carl D. Buchholz, III, Esq.
(Argued) Thomas A. Kuzmick, Esq. Michael A. Meehan, Esq. Rawle &
Henderson 1339 Chestnut Street 1 South Penn Square Widener Building
16th Floor Philadelphia, PA 19107
Before: McKEE, Rosenn, and CUDAHY,* Circuit Judges.
Cudahy, Circuit Judge.

On September 12, 1995, Michael Kirschbaum fell down a stairway in the GSB
Office Building, located in Bala Cynwyd, Pennsylvania. Kirschbaum sustained

serious injuries as a result of the fall and, seeking compensation for these
injuries, sued the building's owner, WRGSB Associates (WRGSB). In turn,
WRGSB filed a third-party complaint against Insignia Commercial Group
(Insignia), the building manager with whom WRGSB had contracted to
manage, maintain and repair the building. Both parties settled with
Kirschbaum, but retained their respective rights of contribution and indemnity.
The United States District Court for the Eastern District of Pennsylvania
apportioned liability equally between the two parties and required each party to
pay half of the settlement amount. The parties appeal, each seeking to have the
other bear the full cost of settlement. We affirm.
I. BACKGROUND
2

Michael Kirschbaum maintained a medical practice in the GSB Building, where

he had been a tenant since 1988. On average, Kirschbaum worked six days a
week, often arriving at the building's parking garage before 7:00 a.m., when the
building opened. Because the building was still closed at the time of
Kirschbaum's arrival, he would walk up a flight of stairs that led to a door to the
building, a key to which he had been supplied by Insignia, the building
manager. This flight consisted of 15 steps, and it was walled on both sides. A
wall-mounted handrail ran up one of these walls, but, at the bottom of the
stairwell, the handrail had become detached from the wall and was resting on
the stairs. While Kirschbaum was aware of the broken handrail (it had been
broken ever since he became a tenant in the GSB building), he nonetheless
continued to use the stairs.

At approximately 6:00 a.m. on September 12, 1995, Kirschbaum arrived at the

building and parked in the lower parking garage. As he was climbing the stairs
leading to the building, Kirschbaum stumbled while attempting to place his foot
on the fifth step. Because the stairway's handrail was broken and resting on the
stairs at the fifth step, Kirschbaum was unable to catch himself, and he fell to
the bottom of the stairs. As a result of the fall, Kirschbaum suffered not only
from fractured bones, but also from a chronic infection of the right leg which
may require the amputation of that leg. See Kirschbaum v. WRGSB Associates,
No. 97-5532, slip op. at 2 n.1 (E.D. Pa. filed Dec. 14, 1999).

Kirschbaum sued WRGSB, the owner of the building, and the district court
properly asserted jurisdiction over the matter pursuant to 28 U.S.C. 1332.
Kirschbaum alleged that he tripped on a step (also known as a "riser") that was
5/8 of an inch taller than the other steps in the stairwell, and further stated that
he was subsequently unable to arrest his fall due to the broken handrail. As
such, Kirschbaum alleged two causes of his fall: (1) the riser height discrepancy

and (2) the broken handrail.

5

Because WRGSB had hired Insignia to not only manage, but also maintain and
repair, the building--including the stairwell in which Kirschbaum was injured-WRGSB brought a third-party action against Insignia, seeking contribution or
indemnification. The district court exercised supplemental jurisdiction over
Insignia pursuant to 28 U.S.C. 1367. WRGSB maintained that it relied on
Insignia to manage and maintain the GSB building, and that Insignia was paid
handsomely to do so. WRGSB further stated that it did not have any employees
on site because Insignia provided several on-site management and engineering
personnel pursuant to the property management agreement. As a result,
WRGSB maintained that Insignia ought to be solely responsible for the injuries
Kirschbaum sustained as a result of the riser height discrepancy and broken
handrail, both of which WRGSB believed that Insignia was responsible for
correcting under the property management agreement.

All of Kirschbaum's claims were settled on September 14, 1998, with WRGSB
and Insignia each contributing half of the $1,750,000 settlement amount, but
retaining their respective rights of indemnity and contribution. Subsequently,
both parties filed motions for summary judgment, seeking to have the other
bear the full cost of settlement. The parties based their motions for summary
judgment on contradictory interpretations of the property management
agreement: WRGSB argued that, under the terms of the agreement, Insignia
was wholly responsible for maintaining the stairwell, while Insignia contended
that WRGSB was required, under the agreement, to purchase insurance and
fully indemnify Insignia.

Following the motions for summary judgment, the magistrate judge assigned to
the case issued a report and recommendation which concluded that both parties
were equally negligent in causing Kirschbaum's fall. In accordance with this
determination, the magistrate judge recommended that the parties bear the cost
of settlement equally. The district court adopted most of the magistrate judge's
report and recommendation, but referred the apportionment of liability issue
back to the magistrate judge for an evidentiary hearing.

At the evidentiary hearing, WRGSB presented the testimony of various

Insignia employees. This testimony was somewhat cumulative and can be
summed up as generally showing that the employees believed Insignia's job was
to repair and maintain the GSB Building. In addition to this testimony, Dan
Grinnan, Insignia's chief engineer at the GSB building, testified that he
attempted to re-weld the broken brackets holding the handrail to the wall before
Kirschbaum's accident, knew those repairs had failed and was aware that the

handrail was still broken on the day of the accident. Nonetheless, Grinnan never
notified WRGSB or Kirschbaum that the handrail was broken. Insignia
countered by calling Charles Goedken, a civil engineer, as its expert witness.
He testified that there was a 5/8 inch discrepancy in one of the stairway's risers,
that such a discrepancy did not conform to generally accepted engineering
standards and that such a discrepancy created a foreseeable risk of falling.
9

Following the hearing, the magistrate judge again found that WRGSB and
Insignia were equally liable for the settlement cost. The magistrate judge held
that WRGSB had a duty to discover and remedy the riser height discrepancy,
and that Insignia had a separate duty to repair the broken handrail. Accordingly,
the magistrate judge ordered them each to pay one half of the settlement
amount. WRGSB appeals, and Insignia cross-appeals. We have jurisdiction
under 28 U.S.C. 636(c)(3) & 1291.
II. DISCUSSION

10

Not surprisingly, WRGSB believes that Insignia is solely responsible for

Kirschbaum's injuries because the property management agreement required
Insignia to take responsibility for the physical condition of all aspects of the
staircase, including the handrail and the stair risers. Insignia cross-appeals,
arguing that WRGSB should pay the entire settlement amount because: (1) the
agreement required WRGSB to provide primary insurance coverage for
Insignia; (2) WRGSB should not have been able to seek contribution or
indemnity from Insignia without first establishing that WRGSB was liable to
Kirschbaum for his injuries; and (3) Kirschbaum assumed the risk of injury
presented by the handrail.

11

Because this is a diversity case, we must first determine the substantive state
law that is to govern our decision. In making this determination, we first look to
the conflict of laws rules of the forum state, Pennsylvania. See Assicurazioni
Generali, S.P.A. v. Clover, 195 F.3d 161, 165 (3d. Cir. 1999). For substantive
tort law issues, Pennsylvania uses a combination of the "government interest"
and "significant relationship" approaches to conflict of laws analysis. Under
this analysis, "a court must evaluate `the extent to which one state rather than
another has demonstrated, by reason of its policies and their connection and
relevance to the matter in dispute, a priority of interest in the application of its
rule of law.' " See Troxel v. A.I. duPont Inst., 636 A.2d 1179, 1181 (Pa. Super.
Ct. 1994). Neither party disputes that Pennsylvania law applies to the tort
aspects of this case, and our review of the facts confirms that the parties are
correct: this case involves an accident in Pennsylvania on a stairwell that is
subject to Pennsylvania building codes and regulations. As such, Pennsylvania

has a priority interest in the application of its tort law to this cause. However,
because the property management agreement so specifies, see Agmt. at S 7.3,
Illinois' substantive law of contracts applies to interpretation of the agreement.
See Kruzits v. Okuma Mach. Tool, Inc., 40 F.3d 52, 55 (3d Cir. 1994)
(Pennsylvania law generally respects parties' choice of law).
A. WRGSB's Appeal
12

Before reaching WRGSB's main argument, we review three inadequately

supported claims that WRGSB raises in the footnotes of its opening brief.
These arguments are: (1) that the magistrate judge erred in allowing Insignia to
call Goedken as its expert witness because "Insignia never identified Goedken
as its expert witness as required by the Court's pre-trial rulings...," see
Appellant's Br. at 18 n.1; (2) that the magistrate judge erred in determining that
WRGSB was a "possessor" of the premises at the time of the accident, see id. at
45 n.11;1 and (3) that the magistrate judge erred in concluding that the riser
height discrepancy constituted a structural defect instead of being a
consequence of normal wear and tear, see id. at 47 n.13. WRGSB has not
presented any of these holdings as a basis for its appeal, and WRGSB does not
mention these arguments in its statement of the issues for review, as required by
Rule 28(a)(5) of the Federal Rules of Appellate Procedure. See Appellant's Br.
at 3-4. We therefore will not reach any of these arguments. See Travitz v.
Northeast Department ILGWU Health and Welfare Fund, 13 F.3d 704, 711 (3d
Cir. 1994). But, even if we were to reach WRGSB's arguments, we could not
decide them on their merits since they are poorly briefed and deserve more
development than passing mention in a footnote for us take them seriously. As
a result, we will not examine whether the magistrate judge erred in allowing
Insignia to call Goedken as its expert witness. Further, we accept the magistrate
judge's finding that WRGSB "possessed" the building at the time of the
accident and that the riser height discrepancy constituted a structural defect.

13

WRGSB's remaining arguments can all be reduced to one claim: that Insignia
should be responsible for the entire settlement amount because the property
management agreement obligated Insignia to discover and correct defects in
both the stair risers and the handrail. Both parties agree that Insignia was solely
responsible for repairing the defective handrail.2 Therefore, our discussion
focuses primarily on which party must accept responsibility for the injuries
arising out of the riser height discrepancy.

14

As owner of the GSB building, WRGSB is charged with the following duty:

15

A possessor of land is subject to liability for physical harm caused to his

15

A possessor of land is subject to liability for physical harm caused to his

invitees3 by a condition on the land if, but only if, he:

16

(a) knows or by the exercise of reasonable care would discover the condition
and should realize that it involves an unreasonable risk of harm to such invitees,
and

17

(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and

18

(c) fails to exercise reasonable care to protect them against the danger.

19

Restatement (Second) of Torts 343 (adopted by the Pennsylvania Supreme

Court in Carrender v. Fitterer, 469 A.2d 120, 123 (1983)) (footnote added).
Thus, WRGSB is obligated to discover and repair the riser height discrepancy
that caused Kirschbaum's fall if, by the exercise of reasonable care, WRGSB is
capable of discovering the defect, and WRGSB should expect that Kirschbaum
would not discover the defect himself.

20

The magistrate judge determined that WRGSB met these requirements, and
WRGSB does not dispute this finding except to argue that the riser height
discrepancy is a trivial defect--an argument that is related to WRGSB's ability
to discover the riser height discrepancy. In support, WRGSB cites several older
Pennsylvania cases where approximately 1.5 inch sidewalk and roadway
discrepancies were found to be trivial. See, e.g., Bosack v. Pittsburgh Railways
Co., 189 A.2d 877 (Pa. 1962); German v. City of Mckeesport, 8 A.2d 437 (Pa.
Super. 1939). While the riser defect here was only 5/8 inch, it occurred on a
stair riser, a place where the defect is likely to be far less obvious than on a flat
surface such as a road (and thus more difficult to protect against). Relatedly,
discrepancies of this kind are far more common (and therefore foreseeable) on a
sidewalk than on a flight of stairs. Indeed, Insignia's expert witness--whom the
district court found more credible than WRGSB's expert witness--testified that a
5/8 inch discrepancy created a foreseeable risk of falling. As such, the district
court did not err in determining that WRGSB was required to discover and
remedy the riser height discrepancy.

21

While WRGSB is thus charged with the duty to discover and repair the riser
height discrepancy, WRGSB argues that its relationship to Insignia is such that
Insignia is primarily liable to Kirschbaum for the injury he suffered as a result
of the riser height discrepancy. As a result, WRGSB believes that it is entitled
to indemnification from Insignia, a right that "enures to a person who, without
active fault on his own part, has been compelled, by reason of some legal

obligation, to pay damages occasioned by the initial negligence of another, and

for which he himself is only secondarily liable." Builders Supply Co. v.
McCabe, 77 A.2d 368, 370 (Pa. 1951). WRGSB maintains that it is only
secondarily liable--and Insignia primarily liable--for the damage to Kirschbaum
because the agreement between itself and Insignia obligated Insignia to correct
not just the broken handrail, but the riser height discrepancy as well.
22

Accordingly, we must look to the agreement between WRGSB and Insignia in

order to determine which party assumed the primary obligation for discovering
and correcting the riser height discrepancy. As noted, we interpret the contract
in accordance with standards dictated by Illinois law. Under Illinois law, a
contract's express provisions govern when the contract is unambiguous. See
Wright v. Chicago Title Ins. Co., 554 N.E.2d 511 (Ill. App. Ct. 1990). If a
contract's language cannot be interpreted in more than one way, "[a] court must
construe the meaning of [the] contract by looking at words used and cannot
interpret the contract in a way contrary to the plain and obvious meaning of
these words." J.M. Beals Enterprises, Inc. v. Industrial Hard Chrome, Ltd., 551
N.E.2d 340, 342 (1990). "Unless the contract clearly specifies its own
meanings, the court must interpret the words or language of the contract with
their common and generally accepted meanings." Id. at 342-43. Further, "the
court must place the meanings of words within the context of the contract as a
whole." Id. at 343.

23

On appeal, WRGSB bases its argument primarily on 2.4 of the agreement,

which reads in relevant part:

24

[Insignia] shall... maintain the buildings, appurtenances and common areas of

the [GSB Building] in good condition according to local standards for
comparable properties in the immediate market area surrounding the Property,
and, in any event, in accordance with the standards and conditions specified by
[WRGSB Associates] from time to time. Maintenance and repair items shall
include, but shall not be limited to, interior and exterior janitorial services,
exterior grounds and landscaping services, repairs and alterations to existing
improvements, plumbing, parking areas, electrical systems[,] painting,
carpentry, maintenance and repair of mechanical systems and such other
maintenance and repair work as is reasonably necessary.

25

Appx. at 233 (emphasis added). WRGSB also cites two other sections of the
agreement as evidence of Insignia's alleged obligation to correct the riser height
discrepancy. Section 2.9 of the agreement states that Insignia must use due care
in the selection and supervision of its on-site personnel. See Appx. at 237. In
addition, 2.13 of the agreement requires Insignia to use its best efforts to

ensure that the GSB Building is kept in compliance with applicable building
codes. See Appx. at 240. WRGSB argues that these contract provisions clearly
transfer to Insignia the building owner's duty to discover and remedy all
hazardous conditions on the premises.
26

As an initial matter, WRGSB's reliance on sections 2.9 (requiring due care in

the selection of on-site personnel) and 2.13 (requiring compliance with
applicable laws and building codes) is misplaced. WRGSB has simply failed to
produce any evidence that Kirschbaum's accident is due to Insignia's
negligently hiring on-site personnel. Neither has WRGSB shown that
Kirschbaum's accident resulted from Insignia's failure to maintain the GSB
building in accordance with applicable building codes. Consequently, neither
2.9 nor 2.13 of the agreement aids WRGSB's argument.

27

We also disagree with WRGSB's reliance on 2.4 of the agreement, for

WRGSB appears to confuse Insignia's obligation to maintain and repair the
building with an obligation to discover structural defects, such as the riser
height discrepancy. That the agreement does not require Insignia to discover
latent structural defects is apparent from the language of 2.4, which
repeatedly emphasizes Insignia's duty to undertake "maintenance" and
"repairs." The two bases of liability at issue in this case--the defective handrail
and the riser height discrepancy--provide a perfect example of how
"maintenance" and "repairs" should be interpreted: fixing a defective handrail
is clearly an act of maintenance and repair, while discovering and mending a
riser that has likely been defective since the building was constructed is not.

28

That maintenance and repairs do not include the obligation to discover latent
structural defects is also supported by the meaning commonly ascribed to these
words. "Maintenance" is defined by Webster's New World Dictionary 854 (2d
College Ed. 1979), to include "the work of keeping a building... in a state of
good repair." "Repair" is defined as "to put back in good condition after
damage, decay, etc." Id. at 1204. These definitions both point to the act of
fixing a deteriorated part of the building, which though originally sound, has
fallen into disrepair. The definitions do not contemplate fixing a part of the
building that was originally defective. Indeed, a finding that the agreement
required Insignia to discover the riser height discrepancy would necessarily
include a finding that Insignia is not only responsible for measuring every stair
riser in the GSB building, but also responsible for other acts that are clearly not
contemplated by the agreement, such as inspecting the building's foundation.
We therefore conclude that the agreement failed to delegate unambiguously the
duty to discover the riser height discrepancy to Insignia.

29

WRGSB's confusion regarding the difference between ordinary maintenance

and repair and the fixing of latent structural defects extends to WRGSB's
argument that the magistrate judge failed to apply the law of the case when
apportioning liability between the two parties. In its June 28, 1999
Memorandum and Order, the district court stated that Insignia was obligated
under its agreement with WRGSB to maintain the stairway and handrails.
WRGSB argues that the magistrate judge failed to adhere to this determination
because he found that WRGSB was responsible for discovering the riser height
discrepancy. As is apparent from our discussion, however, the district court's
finding that Insignia was responsible for maintaining the stairway in no way
contradicts the magistrate judge's finding that WRGSB was responsible for
discovering the riser height defect.

30

WRGSB's argument that it cannot be held to a greater duty of care than Insignia
fails for the same reason. The Restatement (Second) of Torts 324A (adopted
by the Pennsylvania Supreme Court in Cantwell v. Allegheny County, 483
A.2d 1350 (Pa. 1984)) imposes a duty of reasonable care on parties (like
Insignia) who render services for the protection of a third party (like
Kirschbaum). From this, WRGSB argues that any duty of reasonable care it
possessed by virtue of Restatement (Second) of Torts 322 was delegated to
Insignia by the agreement because Insignia assumed a duty of reasonable care
under Restatement (Second) of Torts 324A when it entered into the
Agreement. WRGSB might have a valid argument had it delegated its duty to
discover the riser height discrepancy to Insignia. However, WRGSB did not do
so. Consequently, it retained the duty to inspect for and discover the riser height
discrepancy and cannot shift liability for its failure to do so to Insignia.

31

In an attempt to revise the agreement's unambiguous terms, WRGSB seeks to

have us recognize the testimony of Insignia's on-site property manager, on-site
chief engineer and on-site engineer. WRGSB believes that this testimony will
shed new light on what the parties truly intended when they entered into the
agreement. However, under Illinois law, extrinsic evidence--such as oral
testimony--is not permitted as a means of clarifying an unambiguous contract.
See Air Safety, Inc. v. Teachers Realty Corp., 706 N.E.2d 882, 884 (Ill. 1999).
Because much of WRGSB's proffered testimony derives from depositions that
are such extrinsic evidence, we will not consider this testimony.

32

However, even if we were to consider all of the testimony, it would do little to

aid WRGSB's argument. Each of Insignia's employees stated only that Insignia
was responsible for the inspection, maintenance and repair of the stairway. The
testimony of Kelly Buechler, a senior legal assistant and assistant secretary at

Insignia, as well as Insignia's Federal Rule of Civil Procedure 30(b)(6)

designee, is illustrative. She testified as follows:
33

Q: As part of the Property Management Agreement what is it that Insignia

Commercial Group provided with regard to the GSB Building what did they
do?

34

A: They maintained, leased, and managed the property on behalf of the owner.

35

***

36

Q: As part of the Insignia Commercial Group's management agreement with

WRGSB Associates was Insignia Commercial Group responsible for
maintaining the stairways inside the GSB Building?

37

A: Yes.

38

***

39

Q: [The Property Management Agreement] obligated Insignia Commercial

Group to maintain the GSB Building?

40

A: Yes.

41

***

42

Q: Such maintenance would have involved repairing any condition found of the
stairwell or handrail leading from the underground parking garage to the GSB
Building...?

43

A: Yes.

44

Appx. 651-52, 658-60. Just as with the agreement's express language, this
testimony does not establish that Insignia was responsible for anything other
than maintenance and repair. And as we have discussed, the duty to detect and
correct latent structural defects does not follow from the duty to maintain and
repair. As such, the testimony of Insignia's employees does not show that
Insignia assumed WRGSB's common law responsibility to inspect for and
detect latent structural defects.

B. Insignia's Cross-Appeal
45

Having disposed of WRGSB's direct appeal, we turn next to Insignia's crossappeal. Even though Insignia has admitted its responsibility for maintaining the
handrail, it presents three unavailing arguments in hope of shifting the entire
cost of settlement to WRGSB: (1) that, pursuant to the agreement, WRGSB's
insurance policy covers Insignia as well; (2) that WRGSB has failed to prove
facts that are necessary to establish its right to contribution and indemnity from
Insignia; and (3) that Kirschbaum assumed the risk presented by the broken
handrail.
1. The Agreement's Insurance Provisions

46

Insignia argues that it should not have to pay its share of the settlement because
the agreement required WRGSB to purchase general liability insurance and to
name Insignia as an additional insured on the policy. The provision on which
Insignia relies states:

47

Owner shall carry, at its own expense, commercial general liability insurance in
such amounts that owner, in its sole and absolute discretion, deems necessary
for the protection of owner's interest in the Property, and such insurance shall
be deemed the primary insurance on the Property. Policies of commercial
general liability insurance carried by owner shall include manager... as an
additional insured party only in manager's capacity as manager of the property.
See Appx. 244; Agmt. 5.1. Insignia argues that the clear meaning of this
requirement is that WRGSB's insurance should cover Insignia. However, in
reaching its conclusion Insignia ignores 5.8 of the agreement, which states
that Insignia has no right to recover against WRGSB or its insurance carrier on
any claim to the extent that the claim arises out of Insignia's own negligence.
See Appx. at 246. As noted, Insignia has already admitted liability for the
handrail--a liability that clearly arises out of Insignia's own negligence in failing
to properly secure the handrail. Therefore, the language of the agreement
makes clear that WRGSB's insurance does not cover Insignia for its own
negligent failure to repair the broken handrail.
2. WRGSB's Liability to Kirschbaum

48

Insignia next argues that WRGSB cannot now seek contribution or indemnity
from Insignia because WRGSB did not prove its own liability to Kirschbaum.
Contribution applies when a plaintiff and defendant are joint tortfeasors. See
Builders Supply Co. v. McCabe, 77 A.2d 368, 370 (Pa. 1951). Contribution

comes into force when one joint tortfeasor has discharged a common liability or
paid more than its share of such liability, in which case the joint tortfeasor is
entitled to reimbursement from the other tortfeasors to the extent that its
payment exceeded its own liability. Conversely, the right of indemnification
arises when there is a "difference between the primary and the secondary
liability of two persons each of whom is made responsible by the law to an
injured party." Id. In such a case, the party that is secondarily liable may seek
complete reimbursement from the party that is primarily liable for any damages
the first-mentioned party has paid.
49

A party pursuing claims for contribution and indemnity can do so only if it has
established that it was itself liable to the plaintiff for the plaintiff's injury. See
42 Pa. C.S.A. S 8324(a) (West 1998) (contribution only available among joint
tortfeasors); 42 Pa. C.S.A. S 8322 (West 1998) (joint tortfeasor is, in part, one
who is liable to plaintiff); Builders Supply Co. v. McCabe, 77 A.2d 368, 370
(Pa. 1951) (indemnity may be pursued by a "person who without actual fault on
his own has been compelled by reason of some legal obligation to pay
damages...."). Insignia argues that WRGSB has not established its own liability
to Kirschbaum, and that WRGSB may thus not seek contribution or indemnity
from Insignia. However, while we think it likely that WRGSB was legally
liable to Kirschbaum --as we have noted, WRGSB is primarily liable for its
failure to correct the riser height discrepancy and secondarily liable for
Insignia's failure to repair the handrail --WRGSB need not prove this here. As
determined above, both parties are equally liable to Kirschbaum, but on their
own, distinct grounds: WRGSB's liability arises out of its failure to correct the
riser height discrepancy and Insignia's liability arises out of its failure to repair
the handrail. The parties are thus required to pay equal shares of the settlement,
representing their equal, but distinct, bases of liability to Kirschbaum.
Therefore, Insignia is not entitled to contribution or indemnity from WRGSB.
Insignia's argument that WRGSB must prove its liability to Kirschbaum thus
misses the point and does nothing to alter the parties' obligation to each pay half
of the settlement.
3. Kirschbaum's Assumption of Risk

50

Insignia lastly argues that it cannot be liable for its failure to repair the handrail
because Kirschbaum was aware of the broken handrail and assumed the risk of
any injury resulting from it. Under Pennsylvania law, assumption of risk is
established by showing that the injured party fully appreciated the nature of the
risk it faced and voluntarily assumed it. See Barnes v. American Tobacco Co.,
161 F.2d 127, 149 (3d Cir. 1998). In addition, the injured party must not have
had a meaningful and reasonable alternative path to avoid the risk. See Kaplan

v. Exxon Corp., 126 F.3d 221, 226 (3d Cir. 1997). Whether a party assumed a
risk is a question of fact that is reviewed for clear error. See Kaplan, 126 F.3d
at 225 (assumption of risk generally a question of fact); A&H Sportswear, Inc.
v. Victoria's Secret Stores, Inc., 166 F.3d 197, 201-02 (3d Cir. 1999) (questions
of fact reviewed for clear error).
51

Insignia argues that Kirschbaum assumed the risk of injury resulting from his
fall because he was aware of the broken handrail and had used the stairwell for
years in spite of it. We believe, however, that the magistrate judge correctly
concluded that Kirschbaum did not fully appreciate the extent of the risk he
faced. It is true that Kirschbaum was aware of the broken handrail, and thus
knew that it would not aid him were he to trip while on the stairs. However, the
risk presented by the broken handrail includes not just an appreciation of the
harm likely to result were Kirschbaum ever to need the handrail, but also an
appreciation of the likelihood that Kirschbaum would in fact have to rely on the
handrail to break a fall. This latter component of the handrail's risk was not
appreciated by Kirschbaum: he knew that he might accidently trip when
climbing the stairs, but was completely unaware of the riser height discrepancy,
which increased the likelihood of a fall and thus the likelihood that he would
need to rely on the handrail.

52

Kirschbaum also failed to assume the risk arising out of his use of the stairs
because he did not have a reasonable alternative route. While Kirschbaum could
have entered the building from one other entrance, this entrance--like the
entrance used by Kirschbaum--was locked when Kirschbaum arrived in the
morning. An Insignia employee provided Kirschbaum with the stairwell key
and directed him to use the stairwell. As such, the stairwell was usually the only
way for Kirschbaum to enter the building because he arrived at work before
other building entrances opened. Consequently, Kirschbaum had no other
reasonable route into the building, and he did not assume the risk presented by
the broken handrail.
III. CONCLUSION

53

For the foregoing reasons, the decision of the district court is Affirmed.

NOTES:
*

Honorable Richard D. Cudahy, Circuit Judge, U.S. Court of Appeals for the
Seventh Circuit, sitting by designation.

We recognize that WRGSB develops this argument more fully in its response to
Insignia's cross-appeal. However, because the argument could have been raised
as an issue for review in WRGSB's opening brief --which would have required
that WRGSB include the issue in its statement of issues for review and fully
develop an argument in the argument portion of its brief--we will not address it.
See FDIC v. Deglau, 207 F.3d 153, 169 (3d Cir. 2000) (issues not raised in
opening brief on appeal are waived). However, even if we were to entertain
WRGSB's appeal of the magistrate's factual determination, we would do so
under a clearly erroneous standard of review. See A&H Sportswear, Inc. v.
Victoria's Secret Stores, Inc., 166 F.3d 197, 201-02 (3d Cir. 1999). And,
contrary to WRGSB's contention, we have found nothing in the record to
indicate that the magistrate committed clear error in determining that WRGSB
was a "possessor" of the stairwell in which Kirchbaum was injured at the time
of the accident.

Insignia stipulated to its responsibility for maintaining and repairing the

handrail in the district court, see Kirschbaum v. WRGSB Associates, No. 975532, slip op. at 10, P 36 (E.D. Pa. filed Dec. 14, 1999), and admits in its reply
brief that it "has long since accepted responsibility" for this liability. Appellee's
Br. at 25. As discussed below, however, Insignia does not believe that it ought
to pay for any liability arising out of its failure to repair the handrail because it
believes that, under the agreement, WRGSB's insurance should cover the
liability.

The parties do not dispute that Kirschbaum was an invitee on WRGSB's

premises.